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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ERKNER AND HOFAUER v. AUSTRIA (ARTICLE 50) - 9616/81 [1987] ECHR 24 (29 September 1987)
URL: http://www.bailii.org/eu/cases/ECHR/1987/24.html
Cite as: (1991) 13 EHRR 413, [1987] ECHR 24
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In the case of Erkner and Hofauer*,
_______________
* Note by the Registrar: The case is numbered 16/1986/114/162. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in
that year; the last two figures indicate, respectively, the case's
order on the list of cases and of originating applications (to the
Commission) referred to the Court since its creation.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. R. Ryssdal, President,
Mr. G. Lagergren,
Mr. F. Gölcüklü,
Mr. F. Matscher,
Mr. B. Walsh,
Sir Vincent Evans,
Mr. C. Russo,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 22 September 1987,
Delivers the following judgment, which was adopted on that date:
PROCEDURE AND FACTS
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 14 May 1986. It originated in
an application (no. 9616/81) against the Republic of Austria lodged
with the Commission under Article 25 (art. 25) by a number of Austrian
nationals - Mr. Johann Erkner, Mrs. Theresia Erkner and, after
Mr. Erkner's death, Mr. Josef Hofauer and Mrs. Theresia Hofauer - in
1979 and 1984.
2. In its judgment of 23 April 1987, the Court held that there
had been a violation of Article 6 § 1 of the Convention and Article 1
of Protocol No. 1 (art. 6-1, P1-1) in that the length of consolidation
proceedings affecting land belonging to the applicants had exceeded a
"reasonable time" and infringed the applicants' right of property
(Series A no. 117, pp. 61-67, paragraphs 64-80 of the reasons and
points 1 and 3 of the operative provisions).
The only outstanding matter to be settled is the question of the
application of Article 50 (art. 50) in the case. Accordingly, as
regards the facts, reference should be made to paragraphs 8-57 of the
aforementioned judgment (ibid., pp. 44-59).
3. The applicants claimed compensation in the sum of
760,000 Austrian schillings (ATS) for pecuniary damage and
reimbursement of lawyers' fees, which they put at 582,099.10 ATS.
The Austrian Government ("the Government") and the Commission did not
express a view on the matter.
As the question of the application of Article 50 (art. 50) was
therefore not ready for decision, the Court, in its judgment of
23 April 1987, reserved it and invited the Government to submit their
written comments within the next two months and, in particular, to
notify the Court of any agreement reached between themselves and the
applicants.
4. The Government's memorial was received at the registry
on 13 May 1987 and the applicants' reply on 5 June.
5. On 7 July, the applicants filed an offer of friendly
settlement which the Government had made to them on 23 June. It read
as follows:
"...
With reference to the settlement talks held at the Federal Ministry of
Foreign Affairs on 13 May 1987 and 15 June 1987 in respect of the
human-rights case of Erkner and Hofauer against the Republic of
Austria, the Federal Ministry of Foreign Affairs has the honour to
suggest the following procedure for agreeing and implementing a
settlement in just satisfaction pursuant to Article 50 (art. 50)
of the Convention.
1. Having regard to the judgment of the European Court of Human
Rights on 23 April 1987 in the case of Erkner and Hofauer
(16/1986/114/162), the Republic of Austria states its willingness to
pay the applicants a sum of 650,000 ATS (i.e. 350,000 ATS compensation
and 300,000 ATS in costs). The applicants accept this sum in
settlement of the expenses they incurred in taking legal action (costs
of proceedings - domestic and other) and to cover all damage arising
out of the proceedings up to and including 31 December 1986.
2. The applicants will withdraw the application that they have
made in this case to the Constitutional Court (B 255/86) as soon as
the aforementioned sums have been paid into the account of their legal
representative.
3. This sum shall be paid on trust (zu treuen Handen) to the
applicants' legal representative, Dr. Erich Proksch, Post Office Giro
account no. 154 5595, in two separate instalments: the Land of Upper
Austria will pay 450,000 ATS and the Federation 200,000 ATS by
15 July 1987 at the latest.
4. A precondition of the payment of the sum due from the
Federation to the applicants' legal representative is that the
applicants shall produce a certificate to the effect that no tax
demands by the Federation are outstanding against them.
5. Dr. Proksch undertakes to administer the said sums until the
European Court of Human Rights has decided to strike the case in
question out of the list of pending cases.
6. If the Court should decline to strike the case out, the sums
would be repayable to the Federal Ministry of Agriculture and Forestry
and to the Land of Upper Austria by Dr. Proksch. Dr. Proksch would
in that case be given the relevant account numbers immediately.
7. The applicants declare that after performance of items 1-5 above,
they will not assert, in respect of the period up to and including
31 December 1986, any claims against the Republic of Austria, either
in an Austrian court or before an international or other authority,
which in any way relate to the subject of application no. 9616/81 to
the European Commission of Human Rights or case no. 16/1986/114/162
before the European Court of Human Rights.
This letter and the reply in confirmation of it shall constitute an
agreement within the meaning of Rule 53 § 4 of the Rules of Court of
the European Court of Human Rights.
For the Federal Minister
Signed: Dr. Strohal"
The applicants' lawyer had replied on 29 June in the following terms:
Thank you for your letter of 23 June 1987 concerning the above two
cases of human-rights violations [Erkner and Hofauer; Poiss]. I agree
to the proposed settlement. I have asked my clients in both cases to
produce certificates from the Tax Office to the effect that no tax
debts are outstanding. Should the Republic of Austria not issue these
certificates promptly, my clients must not thereby suffer any
prejudice.
I am accordingly expecting the time-limit to be complied with and that
the amount of 1,350,000 ATS [650,000 ATS in the Erkner and Hofauer
case; 700,000 ATS in the Poiss case] will be paid into my Post Office
Giro account by 15 July 1987 at the latest. At the same time, I have
informed the European Court of Human Rights of the agreed settlement
and asked it to strike the cases out of its list as soon as I have let
Strasbourg know that the amount of the settlement has in fact reached
me by 15 July 1987.
...
Signed: Dr. E. Proksch"
The applicants therefore requested the Court to strike the case out of
its list once it had satisfied itself of the equitable nature of the
settlement thus agreed upon.
6. On 16 July, the Permanent Representative of Austria to the
Council of Europe confirmed that his Government had agreed to pay the
applicants the sum of 650,000 ATS and that this amount had been paid
to them in the meantime. On behalf of his Government he accordingly
likewise requested that the case should be struck out.
7. The Delegate of the Commission, when consulted, made it known
on 12 August that he endorsed that course of action.
On the same day, the applicants' lawyer informed the Registrar that he
had indeed received the sum in question.
AS TO THE LAW
8. Article 50 (art. 50) of the Convention provides as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
Since its judgment of 23 April 1987 on the main issues in this case,
the Court has been notified of a friendly settlement reached between
the Government and the applicants in respect of the latter's claims
under Article 50 (art. 50). Having regard to the nature of the terms
agreed and to the consent of the Commission's Delegate, the Court
finds that the settlement reached is "equitable" within the meaning of
Rule 53 § 4 of the Rules of Court. Accordingly, the Court takes
formal note of the settlement and concludes that it would be
appropriate to strike the case out of its list pursuant to that Rule.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of its list.
Done in English and in French, and notified in writing under
Rule 54 § 2, second sub-paragraph, of the Rules of Court on
29 September 1987.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar